CHAN WU QIAN v. CHAN PAK WAI

IN THE COURT OF APPEAL

1994, No. 100
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This matter comes before us in the form of an appeal against the order of His Honour Judge de Souza made on 20th April 1994 when he granted the petitionera decree nisi of divorce.

2. As I say, this matter was listed for this morning. Yesterday, the Court was notified that a memorandum of notification that the appellant (the "wife") had made an application for legal aid would be filed. Later in the course of the day such a memorandum was filed. Its effect under s.15(4) of the Legal Aid Ordinance is that unless otherwise ordered by this Court, all proceedings in the appeal are to be stayed for a period of 42 days.

3. Mrs Kaplan, who appears for the wife, seeks to persuade this Court not to otherwise order, so that all the proceedings in the appeal can be stayed for 42 days. Alternatively, she has indicated that she is prepared to make an application for such an adjournment. Her instructions do not go much beyond that.

4. In order to address her application, it is necessary to go to the facts. Briefly, the petition in this case was originally issued by the husband on 16th November 1993. It ultimately came for hearing before His Honour Judge de Souza on 20th April 1994. Before that, the wife respondent had not taken any point whatsoever about the jurisdiction of the court. That jurisdiction had been invoked by the petitioner on the basis that the parties were domiciled within the jurisdiction or alternatively that he had a close connection with HongKong.

5. When the matter came before Judge de Souza, an application was made by Mr Skrine, the solicitor appearing for the wife, for an adjournment of the hearing of the petition for 24 hours or for a very short time so as to allow counsel retained by the wife to return to Hong Kong. What that 24 hours or a very short time would achieve is not easy to see. The judge was given to understand that the object was to address the question of forum conveniens as a matter which the wife apparently wished to seek to raise in the court in due course. How long that would take was not indicated to the judge. There had of course been the usual time provided before the hearing for her to pursue that matter, but nothing had been done, no application made nor affidavit filed. The judge saw no reason to grant the application. No reason has been indicated to us why he should have granted the application. He refused the application for adjournment and dealt with the petition as undefended, making the order nisi referred to.

6. Thereafter the wife's notice of appeal was filed on 4th June. A supplementary notice of appeal on 10th June. Following that, the respondent wife who appears to have returned to Beijing, was arrested there on 4th August, apparently for evasion of tax. Meanwhile she had taken proceedings herself in Beijing in the Municipal Intermediate Court of Beijing. She commenced those proceedings on 8th December 1993. The husband sought unsuccessfully to have those proceedings stayed or dismissed by that court. Ultimately, that court granted the wife a divorce and made a settlement of the parties' property in the People's Republic of China apportioning the apparently substantial assets they had there. There are also substantial assets in Hong Kong. The wife prima facie is entitled to very considerable assets, but has no funds at the moment.

7. The present situation is that no evidence whatsoever has been placed before this Court by way of affidavit otherwise; nor was any affidavit placed before the judge below when an application for leave to appeal to this Court was made to him. Nor has any indication been provided of the nature of the grounds or evidence upon which it is sought to challenge his decision.

8. The basis upon which Mrs Kaplan invites this Court to, as it were, grant an adjournment is to enable the wife to give instructions. It must be accepted that she must now find it very difficult indeed to give instructions from where she is detained in Beijing quite apart from lacking available funds. But from the very brief outline I have given of the facts, it is apparent that between 20th April and 4th August, she would have had more than three months within which to give instructions or at least some indication of the nature of her case. It seems that primarily it challenges the judge's implied finding that there was a close connection. I say "implied" because there is no evidence that the point was taken before him other than that some mention was made in an application in May.

9. On that basis there is no indication before us whatsoever that the judgment of His Honour Judge de Souza can realistically be challenged, nor even an indication upon what grounds. Mrs Kaplan has very fairly indicated the position in which she has been placed, which is trying to anticipate what might be the grounds argued on appeal and leaving her to speculate of what might well be discovered by way of fresh evidence. That does not afford this Court, in my judgment, any basis on which to grant an adjournment.

10. For those reasons, it seems to me that nothing will be achieved by granting an adjournment. I can find no justification whatsoever for exercising the discretion, this Court has to order that the stay, that would otherwise automatically take effect on the memorandum filed by the Legal Aid Department, should not do so. I would so order, and indicate that I would also, for those same reasons, reject any application for an adjournment.

Litton, J.A.:

11. I agree.

12. Jurisdiction is founded upon facts. No facts have been put before us to suggest that the District Court lacked jurisdiction. On the contrary, all the available evidence indicates that the husband has had since 1982 a very substantial connection with Hong Kong. He is a permanent resident here. The parties' only son was born here. The wife came to Hong Kong on a one-way permit from China in March 1985 and has a Hong Kong identity card. The suggestion, and it is no more than a suggestion, that the court lacked jurisdiction to grant the decree of divorce is wholly untenable. The wife was represented by solicitors in the court below. If there are facts indicating that the court might have lacked jurisdiction, those would have emerged by now, whatever the difficulties surrounding the wife's access to lawyers at the present time.

13. I agree that we should make an order under s. 15(4) of the Legal Aid Ordinance that the statutory stay should not prevail. Likewise, I, too, would refuse the application to adjourn the hearing of the appeal.

Bokhary, J.A.:

14. I also agree. The courts are strongly against shutting out any contention which has realistic prospects of success. But proceedings will not be held up merely because such potential is asserted. It must appear. I see none whatsoever in the wife's challenge to the Family Court's jurisdiction.